Wednesday, October 10, 2007

Withdrawals...

In 2006, the Maryland Court of Special Appeals answered 'no' to the question "If a female consents to sex initially, and, during the course of the sex act to which she consented, for whatever reason, she changes her mind, and the man continues until climax, does the result constitute rape?"

The incident at issue involved an 18 year-old woman who was taken by car, at night, to a secluded location by two vague male acquaintances (both aged 16 at the time). She was first raped by the other accused Wilson (who was eventually found guilty of rape) on the back seat of the car. The accused in this case, Baby, then asked his friend "Will you let me hit it?", referring to the young woman. He then told the victim that he "wouldn't want to rape her." (Baby admitted to making both utterances.) The victim then said "yes" to sexual intercourse with him, on the condition that he pull out if it hurt her (logically: upon her saying so).

Baby then proceeded to vaginally penetrating the woman, thrusting inside her. She then said 'no' and told him to stop, because it hurt. It was admitted in this case, that, at this point, the accused continued thrusting inside her for 10 seconds before he ejaculated and pulled out.

Although Baby was convicted of rape at trial and sentenced to 15 years' imprisonment, his conviction was overturned by the Maryland Court of Special Appeals. The appeal judgment not only rejected the prosecution's argument that the circumstances (e.g. the victim having been raped for a first time moments before, the secluded location, the victim being outnumbered by her assailants, her subjective fear, Baby's veiled threat of additional physical violence) in themselves were coercitive enough to nullify the woman's "consent."

Relying on the Battle case, it went on to say that, when it comes to rape, common law tells us that it's really about the vindication of the loss of a woman's value, as a chattel, to her legal owner, that is to say, her father or husband.

Thus, the fact that a woman withdraws her consent to sexual intercourse once it has started is irrelevant to whether or not the intercourse amounts to rape, because beyond the initial penetration, once the woman has been deflowered, there is nothing more to lose, and therefore nothing to be further punished.

Pretty depressing, eh?

The good news is that this Middle-Ages ruling has been heard on appeal last week.

Let's just hope that the Court of Appeals will yield to 21st century concepts (such as "women are people too and have their say on the terms and conditions under which they engage in sexual activity") and restore Baby's conviction and sentence.

On the other hand, I'm disappointed that the prosecution's argument seems limited to the assertion that the intercourse constituted rape because "[y]ou clearly have the element of force, you have the resistance by the victim, the victim was quite clear that it was hurting, that she wanted him to stop."

By raising this argument, the prosecution emphasizes the importance of physical coercion and legitimize the requirement that the victim attempted to resist the rape, as legal markers for the victim's lack of consent, rather than focusing on what really matters in sexual assault cases, i.e. the victim's actual, subjective feelings towards the sexual activity.

Sexual assault, as defined under Maryland law, and as acknowledged by the prosecution's argument, is not about punishing the accused's disregard for another person's subjective preference about whether or not she wants to have sex. When the law defines a woman's consent to sexual activity as something else than herownsubjectivestate of mind, for instance, by defining "consent" as lack of "adequate" (read: from a male point of view) resistance, or as passivity or submission, it obviously does not give a damn about whether or not the woman being penetrated is actually willing or not.

In that context, it does not even make sense to be talking about a woman's withdrawing her consent.

What I would have appreciated from the prosecution in the current Baby appeal is a genuine argument to the effect that women, as human beings, deserve the right to decide of the conditions under which they will engage in any type of sexual activity. Men do. (Obviously.) The right to the legal recognition of women's sexual agency is nothing short of a fundamental equality requirement.

For such recognition to be possible, the laws of Maryland must be amended so as to make the legality of sexual acts absolutely conditional to both partners' subjective consent. Therefore, the definition of "consent" as the absence of extrinsic physical violence, lack of sufficient physical resistance, submission, or passivity must be thrown out, and replaced by a notion of "actual consent", which consists of one's own subjective feelings.

***

The Baltimore Sun published an article about the Baby appeal. It's not really informative for those who are not already familiar with the case, given that it considerably distorts the facts of the case.

What is most disturbing though are the comments to the article. They reveal a shocking resistance to the idea that a woman has the right to withdraw her consent to sexual activity, and that doing so does not make her a whore or a liar, nor does it strip her of her rights to vindicate the attempt on her bodily integrity. They also provide a thorough - and disheartening - summary of rape myths and prejudices about women who file complains for sexual assault. (Including the suggestion that the victim is the one who should have been prosecuted for rape, given that she had "lure" two underaged males into sex.)

"Either you want it or you don't. If there is a question mark, say no up front. Or wait. After penetration, unless under violent circumstances, it is just not valid. Bad performance is not rapeor 3/4 of the population would be in jail. And not the providence of 16 year olds. Strangers, sex and liquor are a very poor combination."

"It is asking alot to even think of accusing someone of rape when you let him enter your body and get within five seconds of climax. By the way they should accuse her of raping him because he was 16 and she was 18."

"Anyone who says yes during sex is in a position where they must consent until it is over. Anyone who says yes then no has less sexual credibility. Those with little to no sexual credibility should be barred from the right to file rape charges period. There are real rapes, the West Virginia torture, a woman who is jumped and kidnapped by three men, and similar such situations where the real rapists need to be thrown into prison so that they themselves can be punished severly. Any case however involving a person who cannot make up their mind should automatically be thrown out because whats to stop them from filing a charge of rape over the decision that it was simply bad sex. Real rapes only in the courtroom, no drunks who said yes at one point during the intercourse and no one who engages in other such acts should be given the right to file charges. Rather they need to punish the accusors who go between yes and no during sex with perjury as they are filing false charges for something they allowed to happen."

***

Many people who commented the Baltimore Sun's article seem to share the view that once a man has penetrated a woman, especially if he is approaching climax, loses his capacity to acknowledge her demands that he stops and to pull out immediately. Such people also seem think that a delay of 10 seconds between the moment when a woman, who is being penetrated, says "no, stop, it hurts" and the moment when the man actually pulls out, is actually quite reasonable, and can be easily justified by the handy "getting-near-climax-has-become-unresponsive-jelly-of-lust-can't-hear-you-until-I-get-off" theory.

But it's not only retrograde, misogynistc jerks who adhere to this view. I have had a serious - and quite awkward - discussion about this issue (as it arises in a sexual assault context) with one of my professors, a brilliant mind and a kind man, who sincerely seem to think that sometimes, even 10 seconds are not enough.

In all fairness, being a woman, I obviously don't have a first hand experience of this, but I remain extremely sceptical about the "I-can't-hear-you-I'm-gonna-come" excuse.

What is certain though is that 10 seconds can seem like a lifetime in certain circumstances. Those who have been raped or sexually assaulted very well know this. (For those who have been lucky enough to have never experienced such a situation, here's a thought: paper sheets, an unknown OB-GYN and a metallic, cold speculum.)

Since the mid-80's, Canada has - in theory, as least - left the Middle-Ages of sexual assault legislation by (1) replacing the gendered offence of "rape" with the neutral one of "sexual assault", and (2) ditching the unrealistic "objective" notion of "consent" (which was similar, under the common law, to the notion of "consent" as it applies in Maryland) with a subjective view of consent that corresponds to the person's subjective state of mind at the relevant time.

Moreover, the Criminal Codenow explicitly provides that there is no consent when someone's, having validly given it earlier on, chooses to withdraw it (s. 273.1(2)(e)).

2 comments:

Saw your post linked on feministe's shameless Sunday post. I thought it was very clear and mostly, all I have to say is

(a) Canada is looking better and better all the time.(b) I liked your discussion of the subjective, rather than coercive/non-coercive consent. It makes a great deal more sense in terms of defining rape as something that happens to a human being, rather than something that happens to a man's property (@$!@#$!).

And all the "it's just bad sex!" commentors make me want to beat their heads against a wall. Having something unwanted shoved inside your body, having your control over your body violated, being turned into a sex object rather than a human being, is not "just bad sex." Why don't they understand that?